Too late to change your mind

Too late to change your mind

The recent case of Spencer v Spencer [2023] EWHC 2050 (Ch) provides a useful canter through the authorities and legal principles that underpin a successful proprietary estoppel claim. The judgment was handed down on 9 August 2023 and for those interested in the detail can be read here.

The facts are relatively straightforward and involve a father, described in the judgment as a proud, strong-willed and old fashioned farmer and his son who claimed that he had relied on his father’s promises that if he worked hard and did what he was told he would inherit the farm on his father’s death. The father made two wills to that effect in 1993 and 2003.

In January 2018, the son was diagnosed with multiple sclerosis. In March 2018, the father made a third will that, instead of leaving the farm to his son, put it into a discretionary trust. The father died in October 2018. The evidence was that father had changed his mind because he thought that his son would die young as a result of the medical diagnosis and that he had doubts about the ability of his son’s sons to continue the family farming legacy. The son challenged the will and fell out with his older sisters who represented the late father’s estate. There was quite a bit of evidence in front of the court and much of it was a mixed bag.

In her closing submissions, the sisters’ counsel, Caroline Shea KC, accused the son’s solicitor of saying things in his witness statement which he knew were not true in order to bolster his client’s claim and submitted that it was dishonest evidence. The solicitor said that his evidence was incorrect because of the state of disarray of the files in his office, which he said was purely down to incompetence.

On balance, the solicitor got off lightly. The judge said that, on the evidence, Ms Shea’s submission that he had given dishonest evidence was a perfectly proper submission but that, as it had not been put expressly to the solicitor in court he had not been given an opportunity to address that specific contention. The judge therefore concluded that it would not be fair and declined to make any findings that the solicitor’s witness statement contained dishonest evidence. He did, however, heavily criticise the solicitor’s witness statement saying that it “should never have been prepared” that he “should not have put a Statement of Truth or a Confirmation of Compliance to it”, “should not have put a Certificate of Compliance to it”, “should have corrected his witness statement at the earliest opportunity” and “should never have allowed his witness statement to stand as his evidence in chief without correction”.

There was also an interesting discussion about whether the fact that the son had done well financially as a result of the success of the business was, in itself, sufficient to remedy the detriment he had suffered from committing himself to a life of farming in partnership with his father, so that it was not unconscionable for father to change his mind about leaving his son the farm. It was argued on behalf of the sisters that, far from suffering detriment, the son had, in fact, enjoyed substantial financial benefits as a result of his hard work and commitment. The argument for the son was that where a parent promises a child a farm if they work on the farm until the parent dies, and the child does what they were asked to do, giving up the possibility of other options, and positioning their working life based on the assurances, that is likely to amount to detrimental reliance. His counsel said that it is not possible to put a money value on the unquantifiable detriment of committing a life to a farm and not building a different life elsewhere, nor to recreate a world in which the father’s assurances had not been made.

The judge preferred the son’s arguments and repeated an observation from a previous case that the true “value” of the detriment may be impossible to assess with any confidence and that prima facie where the reliant detriment has had lifelong consequences “a detriment valuation analysis will fall upon stony ground”.

The judge reminded himself that his job was to determine whether it was or was not not unconscionable in all the circumstances for the assurances made by the father to the son to be repudiated. He concluded that it was on the basis that there was a quasi-bargain between father and son and the son had done what was asked of him. He referred with approval to what had been said by Leslie Blohm QC, as he then was, in submissions in the court of appeal in Habberfield v Habberfield : “if you get what you asked for, you should give what you offered”.

The court of appeal judgment in Habberfield opens with the words “This is a sad tale of a farming family”. That is clearly also the case here; as it is in all such farming family disputes. It is also a lesson for solicitors and other professionals, particularly those engaged in litigation, to keep their files in order and stick wholly to the facts so that they do not end up re-interpreting their files by making unsupported assumptions and finding themselves in the position of having to plead incompetence as the better alternative to dishonesty.

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